2013-00141352-CU-MC
John Doe vs. Department of Human Assistance
Nature of Proceeding:
Filed By:
Hearing on Demurrer to Second Amended Complaint
Motooka, Wendy

*** Judge Cadei discloses that his wife, Toni J. Moore, is the Executive Director
of the First 5 Sacramento Commission, an entity which is part of the County of
Sacramento. First 5 California and 58 First 5 County Commissions were created
by statewide voter initiative passed in 1998. First 5 is separately funded out of
special tobacco tax proceeds and is directed to support programs for children.
As such the Commission is not dependent on the general funds of Sacramento
County for its operations. The Board of Supervisors of Sacramento County
does review and approve its yearly budgets and long-term plans. ***
** If any party requests oral argument, then at the time the request is made, the
requesting party must inform the court and opposing counsel of the specific
issue(s) on which oral argument is sought. **

The demurrers of Defendants County of Sacramento (“County”), Colleen Miller
(“Miller”), Terrie Hardy-Porter (“Hardy-Porter”), Don Semon (“Semon”) and Bill Davis
(“Davis”) (collectively “Defendants”) to Plaintiff John Doe’s (“Plaintiff”) second
amended complaint (“SAC”) are SUSTAINED with and without leave to amend as
follows:

Background Facts and Procedure

This case arises from (1) Plaintiff’s termination from the County’s Department of Child
Support Services (“DCSS”) and (2) the County’s Department of Human Assistance’s (“DHA”) subsequent decision to hire Plaintiff and then withdraw that decision.

Plaintiff alleges that he is required to register as a sex offender because of an offense
he was found to have committed as a juvenile. He alleges that, the day before DCSS
terminated him, he reported to the Sheriff’s office to register. During the registration
process, there was an alleged discrepancy over the nature of the information Plaintiff
was required to provide. According to Plaintiff, because he did not complete his
registration, a Sheriff’s deputy informed DCSS Director Hardy-Porter that Plaintiff had
failed to register as a sex offender and was going to be arrested. Hardy-Porter
allegedly consulted with Davis and Semon before Sheriff’s deputies made the arrest.
The same day Plaintiff failed to register, he was arrested at DCSS and jailed. His
supervisor coded his two-hour absence from work the day of his arrest as “vacation.”
Plaintiff alleges that the Sheriff unlawfully imposed a bail requirement that prevented
him from being released from custody until after 9:00 a.m. the day after his arrest. He
alleges that he directed his wife to inform his direct supervisor at DCSS that (a) he
would not arrive at work in time for his 8:30 a.m. shift, (b) he was taking personal time
off, but (c) he would arrive by 11:00 a.m. Plaintiff alleges that, when he arrived at
work, DCSS Associate Director Davis directed him to return home and await a call.

Davis subsequently informed Plaintiff that he was terminated from DCSS’ employment.
Plaintiff alleges that DCSS cited his absence from work the day of and after his arrest
as the basis for the termination. According to Plaintiff, he was only absent from work
for two hours. Plaintiff alleges that the real reasons for the termination were his arrest
and the information that Hardy-Porter received about him (i.e., his sex-offender status
and corollary requirement to register) in conjunction with his arrest.

Plaintiff alleges that he subsequently applied for a job with DHA and received an offer
of employment. Plaintiff alleges that, before he commenced work with DHA, Miller
withdrew the offer of employment. Plaintiff alleges that Miller’s decision was based on
information about Plaintiff’s juvenile record, sex offender status and arrest at DCSS.
Plaintiff alleges that he has been unable to find full-time work since DCSS terminated
him.

Plaintiff’s SAC contains five causes of action for Violation of Penal Code § 290.46(l)(4)
(A), Violation of Labor Code § 432.7(c), Violation of Labor Code §§ 1050-1052,
Negligent and Intentional Infliction of Emotional Distress (“NIED” and “IIED”), and
Interference with Economic Relationship. Defendants demur to the first, third and fifth
causes of action on grounds that the allegations fail to state facts sufficient to state a
cause of action.

Discussion

The First and Fifth Causes of Action for Violation of Penal Code § 290.46(1)(4)

(A) and Interference with Economic Relationship

The demurrers are SUSTAINED without leave to amend.

Plaintiff has abandoned these causes of action, (Opp. at 3:24-4:9), which the court
construes as his concessions that the allegations do not state valid legal claims and
that he cannot remedy the pleading defects through further amendment. The Third Cause of Action for Violation of Labor Code §§ 1050-1052

The demurrer is SUSTAINED with leave to amend.

There is no dispute that Labor Code § 1050 applies to “misrepresentations” made to a
prospective employer. The SAC does not contain allegations that any defendant made
a misrepresentation about the reasons for Plaintiffs’ termination from DHSS. In his
Opposition, however, Plaintiff argues that statements made in conjunction with his
termination implicitly communicated falsehoods about sex registrants:

The misrepresentations made by the individual defendants and DCSS
management to DHA relate to the public misconceptions about sex
offenders, namely that: (1) sex crimes are becoming more and more
prevalent; (2) sex offenders have a high re-offense rate and can’t be
rehabilitated and (3) registered sex offenders are mostly violent rapists
and pedophiles. Simply providing that information to DHA was sufficient
to blackball him from further employment in DHA. So while, it is a true
statement that Plaintiff was a sex offender and is required to register as
such, it is the underlying message that comprises the “misrepresentation”
namely you do not want this employee because he may re-offend, he is
not rehabilitated and he is a violent person; all of which are false
statements as they apply to Plaintiff.

(Opp. at 5:17-25.) Plaintiff does not cite any authority for the proposition that Labor
Code § 1050 applies to statements that are literally true. Absent an authority for such
a proposition, the court rejects Plaintiff’s position and sustains the demurrer.
The court grants Plaintiff leave to amend. However, if Plaintiff is unable to allege in
good faith that one or more defendants made false representations about him in
conjunction with his attempt to obtain employment, then he will not be able to state a
valid cause of action.

Because the court sustains the demurrer for the reasons above, it does not address
the parties’ further arguments in support of and in opposition to the demurrer to the
third cause of action.

Judicial Notice

Defendants’ request for judicial notice is UNOPPOSED and GRANTED.

Conclusion

The demurrers are sustained.

No later than April 14, 2014, and only to the extent leave to amend is granted, Plaintiff
may file a third amended complaint (“TAC”); Defendants to file and serve their
responsive pleading(s) within 10 days thereafter, 15 days if the TAC is served by mail.
(Although not required by any statute or rule of court, Plaintiff is requested to attach a
copy of the instant minute order to the TAC to facilitate the filing of the pleading.)

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is required.